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Not all relapses are created equal

As part of a rehabilitation program, employers often enter into last chance agreements with employees suffering from a drug or alcohol addiction. But does a last chance agreement always mean it's the employee's "last chance"? Not always, as you can see from International Longshore and Warehouse Union, Local 400 v Seaspan ULC (PDF). In this case, an arbitrator reinstated an employee with addictions disabilities who had been dismissed pursuant to a last chance agreement, despite the employee's four relapses in four years.

Background

The employee ("GH") was a Cook/Deckhand for a marine transportation company. There was no dispute that this was a safety-sensitive position. He tested positive for alcohol in a random test, in breach of a last chance agreement that required him to abstain from alcohol and drugs. The employer terminated his employment, relying on the express terms of the last chance agreement. It provided that any positive test would result in immediate termination.

GH had a long history of drug and alcohol addiction. He self-disclosed his addiction to the employer in 2006, and entered into the employer's addiction treatment program, which he had assisted the employer establish. Upon completing the program, GH was subject to a two year monitoring agreement, the terms of which he complied with. From 2009 to 2011, GH had three relapses. There were no workplace incidents or any indication that GH was ever impaired at work. Each time, he self-reported, and was subject to requirements of abstinence, monitoring and treatment. In October 2011, GH, the employer and the union entered into a last chance agreement.

Then, in August 2013, GH once again relapsed. He was dismissed pursuant to the last chance agreement. The union grieved, alleging that the employer failed to accommodate GH's addiction disability to the point of undue hardship.

Decision

While the arbitrator confirmed that last chance agreements should be given effect unless there are "strong and compelling reasons" not to, he at the same time confirmed that parties cannot contract out of the duty to accommodate. As part of its duty to accommodate, an employer must not only consider whether it could accommodate an employee in his previous position, but also whether it could accommodate the employee in any other available positions, with or without modifications, up to the point of undue hardship.

Arbitrator Stan Lanyon concluded that the employer had cause to remove GH from his safety-sensitive position and met its duty to accommodate in that regard, given the multiple relapses. However, he went on to say that undue hardship had not been demonstrated when it came to accommodating GH in other, non-safety sensitive positions. He ordered that GH be reinstated to a non-safety sensitive position, if available. Central to this decision were the specific circumstances around GH's relapses and his prospects of recovery:

he self-disclosed;

he never reported to work impaired;

there was no evidence of the use of alcohol or drugs at the workplace;

there had been no workplace incident arising from drugs or alcohol; and

he was involved in a comprehensive treatment plan.

In short, the arbitrator concluded that "not all relapses are created equal".

Significance

Although a decision by an arbitrator appointed under the Canada Labour Code, this decision may influence arbitrators, courts and human rights tribunals right across the country. As such, before terminating the employment of a drug- or alcohol-addicted employee, it is important for employers to step back, review the specific circumstances, and assess whether accommodating the employee in any available position would cause undue hardship. Relevant circumstances to consider include whether the employee self-disclosed his/her relapse(s), the nature of the relapses and the effect on the workplace. That should include whether the employee reported to work impaired, consumed alcohol or drugs at work, or was involved in any workplace incident or near-misses. And, of course, the employee's prospects for recovery.